Appeal by plaintiffs from the Circuit Court of Bureau county;
the Hon. ROBERT E. LARKIN, Judge, presiding. Heard in this court
at the February term, 1953. Decree affirmed. Opinion filed July
2, 1953. Released for publication July 20, 1953.
MR. PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
On November 6, 1941, William H. Johnson, a resident of Bureau county, Illinois, executed his will and thereafter, on March 22, 1944, a codicil thereto. On November 20, 1944, he died, and subsequently this will and codicil were duly admitted to probate by the county court of Bureau county. By his will and codicil the testator devised and bequeathed all his estate, after the payment of debts, to his daughter, Alice Johnson (now Alice Johnson Foushee), and to his two sons, Homer and Frank Johnson, three of testator's children, in trust. On April 25, 1949, the instant complaint was filed in the circuit court of Bureau county by the three children as individuals and as trustees, asking the court to confirm their testamentary appointment and for instructions in regard to certain matters set forth in paragraph 15 of the complaint. Answers and counterclaims were filed, and upon a hearing by the chancellor, a decree was entered construing the will of William H. Johnson, deceased, confirming the appointment of trustees and giving them certain instructions. From this decree the plaintiffs prosecuted an appeal to the Supreme Court of this State, and that court transferred the cause to this court (Johnson v. Sarver, 413 Ill. 626). Its opinion states the facts quite fully and to a large extent is repeated here.
The record discloses that Mary Jane Johnson, the wife of the testator, William H. Johnson, died intestate in 1937 leaving her surviving her husband and nine children. One child, Harry Johnson, died intestate subsequent to the death of his mother and prior to the death of his father, William H. Johnson. Dorothy Pearl Sarver and Mary Johnson are surviving children of said Harry Johnson, deceased, and these parties and all other heirs at law of William H. Johnson and all the beneficiaries of the trust created by the will of the said William H. Johnson were made parties to this litigation and are appellees here.
At the time of the death of William H. Johnson in 1944, he was in possession of seven farms, referred to in the record as the Home, Miller, Fisher, Becker, Hoover, School, and Morgan farms. In another farm of 240 acres, referred to in the record as the Bowen farm, he was the owner in fee of an undivided one-third interest therein. This Bowen farm had been owned by Thomas Bowen, who devised it to his daughter, the said Mary Jane Johnson, who owned it in fee at the time of her death. Upon her death, her husband, William H. Johnson, became the owner of an undivided one-third thereof, and each of her nine children became the owner of an undivided two twenty-sevenths interest in said Bowen farm. After the mother's death the nine children, including the said Harry Johnson, conveyed their undivided interests in this farm to their father for his lifetime, reserving the remainder to themselves. The Home farm consisted of 267 acres. This farm included an eighty-acre tract of which testator owned an undivided one-ninth interest; the remaining eight-ninths interest was owned by testator's eight living children, and upon the hearing it was stipulated that only the title to an undivided one-ninth of this eighty-acre tract passed to the trustees under the provisions of the will and codicil of William H. Johnson. In addition to these farms, William H. Johnson also owned a residence in Princeton and a business building in Wyanet and a substantial amount of personal property.
The will and codicil provided that the trustees were to operate the farms and other business and divide the income into ten shares annually, paying one share to each of the testator's nine children and dividing the tenth share equally between certain religious charities. The trust was to terminate upon the death of the last survivor of six named children and two named grandchildren and the corpus distributed among the testator's heirs at law per stirpes.
The eighth paragraph of the will provided that the named trustees "shall receive in full of their compensation and allowance for legal advice and service the sum of Five Hundred and no/100 ($500.00) Dollars per year while acting as such trustee." This amount was increased to $600 per year by the second paragraph of the codicil.
The ninth paragraph of the will provided that the said Bowen farm, hereinbefore referred to, should "go into and be distributed at my death with and as a part of my own estate and be dealt with as though I were in possession thereof and held title in fee simple to the same at the time of my death, and I hereby direct that the said real estate in the settlement of my estate be subject to and disposed of under and by the provisions of this my last will and testament." The tenth paragraph of the will provided that any of the heirs of testator's wife who objected to the Bowen farm being so treated should forfeit from his or her share of testator's estate a sum equal to his or her interest in the real estate so owned by his or her mother at the time of her death and that the amount so forfeited should be divided among the beneficiaries under testator's will in proportion to the shares he, she, or they would take under the will.
The seventh paragraph of the will, which provided that any beneficiary who should contest the will or aid in contesting it should be barred from taking any share of his estate, was, by the fifth paragraph of the codicil, changed and modified to read as follows: "Should any beneficiary or beneficiaries under this my last will and testament object to the probating thereof or in any way directly or indirectly contest or aid in the contesting of the same or any of the provisions thereof or of the management of my estate and the distribution of the income thereof as provided in this my last will and testament, then and in that event I hereby annul any and all bequests herein made to such beneficiary or beneficiaries and it is my will and I hereby direct that such beneficiary or beneficiaries shall be absolutely barred and cut off from any share or part of my estate, except to such portions of my estate above mentioned as is known and described as (here follows the legal description of the Bowen farm). . . . In reference to which real estate, it is my will and I hereby direct if they or either of them so elect, such person or persons my (sic) take the same share or interest in the said above-described real estate as such persons would otherwise taken under and by virtue of the last will and testament of Thomas Bowen, deceased, and that such person or persons be excluded from any and all participation in the remainder of my estate and completely barred from taking anything under this, my last will and testament, or inheriting any part or portion of my said estate whatsoever." This paragraph of the codicil contained no provision for disposition of any portion of the estate forfeited thereunder.
Paragraph 15 of the complaint alleged that certain questions have arisen in regard to the administration of the trust and requested the court to direct the trustees in connection with their duties. Only subparagraphs F, G, and H thereof need be noticed upon this appeal.
In subparagraph F of paragraph 15 of the complaint, the plaintiffs referred to the eighth clause of the will as modified by clause second of the codicil and represented that it was the intention of decedent that each of said trustees should receive the sum of $600 per year for his or her services and that it was the intent of said testator that their attorney should be allowed an extra sum of $600 per year for legal services and asked the court to so construe these clauses.
Subparagraph G of paragraph 15 of the complaint alleges: "That at the time of the death of decedent, a part of his Estate consisted of seven farms, and one farm which had previously been owned by decedent's wife in her lifetime, and which is operated as a part of this Trust. The buildings and fences on all of said farms were in a ruinous condition, had not been repaired, remodelled, or improved for many years. These Trustees have made repairs and improvements to such buildings and fences, and have erected certain new buildings as will be shown by a report to be later filed herein. Approval of such action and expenditures is requested."
Subparagraph H of paragraph 15 of the complaint alleges that "Two distributions have been made to the parties herein, totaling $4,000.00 to each main share under stipulation between all of the parties as to certain matters and things in dispute, but no distribution has been made to defendants, Dorothy Pearl Sarver and Mary Johnson Bartlett, for the reasons set forth in Sub-Paragraph A of this Paragraph 15 of this Complaint. Approval of such distribution is requested." The reasons set forth in subparagraph A for not making a distribution to Mrs. Sarver and Mrs. Bartlett were that their father, Harry Johnson, at the time of his death was indebted to the testator in a substantial amount and that Mrs. Sarver and Mrs. Johnson had agreed to forego any distributive share to which they might be entitled until their father's obligation to William H. Johnson should be fully paid and discharged.
The prayer of the complaint was that the plaintiffs be confirmed in their appointment as trustees under the will and that they be instructed as to matters set forth in paragraph 15 of the complaint.
The defendant, Orrie Johnson, husband of Elvira Johnson, filed a separate answer admitting all of the allegations of the complaint so far as the questions raised on this appeal are concerned. Clay Johnson and Ruth Johnson Dremann answered and filed a counterclaim, as did the defendant, Elvira Johnson. The answer of Elvira Johnson admitted the allegations of paragraph 15 G of the complaint with the exception of that part thereof ...